People v. Compan

• Decision Date: 20 May 2004
• Docket Number: No. 02CA1469.,02CA1469.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marco COMPAN, Defendant-Appellant.
• Court: Colorado Court of Appeals

100 P.3d 533

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marco COMPAN, Defendant-Appellant.

No. 02CA1469.

Colorado Court of Appeals, Div. V.

May 20, 2004.

Certiorari Granted October 25, 2004.¹

Ken Salazar, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Todd Johnson, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RUSSEL.

Defendant Marco Compan appeals his conviction for third degree assault. We affirm the judgment.

This case arises from an incident of domestic abuse that occurred in August 2001. On the day of the incident, defendant's wife (the victim) called a friend and said that defendant was angry and yelling at her. The victim asked her friend to drive over and pick her up. The friend agreed. The victim called back approximately fifteen minutes later and said, "Come pick me up. He already hurt me. I'm ready. I'll be waiting for you in the back."

The friend drove for about fifteen minutes, picked up the victim, and returned home. During the ride, the victim was upset and agitated. She said that defendant had punched and kicked her, thrown her against a wall, and pulled her hair. After arriving at the friend's home, the victim began to calm down. Shortly thereafter, the friend took the victim to a hospital, where the victim spoke with police and saw a doctor. The victim told the doctor that defendant had hit, kicked, pinched, and pushed her.

The victim did not testify at defendant's trial. Her friend was allowed to testify about the victim's statements under CRE 803(2), the excited utterance exception to the hearsay rule. The doctor was allowed to testify about the victim's statements under CRE 803(4), the exception for statements made for the purpose of medical diagnosis and treatment.

On appeal, defendant challenges hearsay statements presented through the testimony of both witnesses.

I. Testimony of Victim's Friend

Defendant contends that the trial court committed reversible error when it admitted the hearsay testimony of the victim's friend. Defendant argues that the statements were not admissible as excited utterances under CRE 803(2). And he argues that the testimony violated his confrontation rights under the federal and state constitutions.

We address these arguments in turn.

A. Excited Utterance Exception

The trial court admitted statements that the victim made on the telephone and during the drive to the friend's home. But the court excluded statements that the victim made after she had regained her composure.

Defendant contends that the earlier statements should have been excluded as well. We disagree.

An excited utterance is 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." CRE 803(2). There are three requirements for admissibility under this exception: (1) the event must be sufficiently startling to render normal reflective thought processes of the observer inoperative; (2) the statement must be a spontaneous reaction to the event; and (3) direct or circumstantial evidence must exist to allow the jury to infer that the declarant had the opportunity to observe the startling event. People v. Martinez, 83 P.3d 1174, 1177 (Colo.App.2003).

Defendant challenges only the second requirement, noting that the victim's statements were made at least fifteen minutes after the incident.

The trial court is in the best position to consider the effect of the startling event on the declarant and is therefore accorded wide discretion in determining admissibility under the excited utterance exception. People v. Martinez, supra.

The excited utterance exception has been liberally interpreted to extend to statements made following a lapse of time after the startling event itself. There is no firm time limit because the duration of stress will obviously vary with the intensity of the experience and the "emotional endowment" of the declarant. People v. Stephenson, 56 P.3d 1112, 1116 (Colo.App.2001).

Factors to be considered in determining whether the statement was spontaneous include (1) the lapse of time between the startling event and the out-of-court statement, (2) whether the statement was made in response to an inquiry, (3) whether the statement was accompanied by outward signs of excitement or emotional distress, and (4) the choice of words employed by the declarant to describe the experience. Canape v. Peterson, 878 P.2d 83, 87 (Colo.App.1994), aff'd, 897 P.2d 762 (Colo.1995).

Here, we cannot say that the court abused its discretion in admitting the victim's statements under the excited utterance exception. The record indicates that, during the telephone calls, the victim was crying and using broken speech. Similarly, during the ride back to the friend's home, the victim was biting her nails, shaking, and crying. She acted frightened and repeated herself as she spoke. Thus, the record supports the trial court's conclusion that the victim was still under the stress of the event when she made the statements.

B. Constitutional Right of Confrontation

Defendant next argues that admission of the hearsay statements violated his rights (1) to be "confronted with the witnesses against him" guaranteed by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment of the United States Constitution, and (2) to "meet the witnesses against him face to face," guaranteed by article II, § 16 of the Colorado Constitution. We again disagree.

1. Federal Confrontation Analysis under Crawford

Until recently, the constitutional admissibility of hearsay statements was determined according to the two-prong test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under this test, a court could admit statements made by a declarant who did not testify if the prosecution showed that (1) the declarant was unavailable and (2) the statements were reliable, either because they fell within a "firmly rooted" hearsay exception or because they bore "particularized guarantees of trustworthiness." Roberts, supra, 448 U.S. at 66,100 S.Ct. at 2539. Later, the Court refined the Roberts test, dispensing with the need to show unavailability when the declarant's statements fell within a firmly rooted exception. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992)

(discussing United States v. Inadi, 475 U.S. 387, 395, 106 S.Ct. 1121, 1126, 89 L.Ed.2d 390 (1986)).

But in Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, ___ L.Ed.2d ___ (2004), the Supreme Court abrogated Roberts and adopted a new test for determining whether hearsay testimony will violate the defendant's constitutional right of confrontation. The Court ruled that "testimonial" statements by a witness not present at trial may only be admitted if the witness (1) is unavailable and (2) was subject to cross-examination when the statement was made. Crawford v. Washington, supra, ___ U.S. at ___, 124 S.Ct. at 1369. Although not decided until after defendant was tried and sentenced, Crawford nevertheless applies to defendant's direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987)

(failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication).

On its face, the rule of Crawford is simple and easy to apply. But courts will encounter difficulty, for a time at least, with the threshold determination of whether the out-of-court statements are "testimonial." The concept is not well-developed in the law, and the Crawford majority declined to give a precise definition. See Crawford v. Washington, supra, ___ U.S. at ___, 124 S.Ct. at 1374

("We leave for another day any effort to spell out a comprehensive definition of `testimonial.'").

Fortunately, however, the Crawford majority provided some guidance. The Court listed several "formulations" of the "core class" of testimonial statements:

Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," [and] "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition—for example, ex parte testimony at a preliminary hearing.

Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.

Crawford v. Washington, supra, ___ U.S. at ___, 124 S.Ct. at 1364 (citations omitted; quoting appellate briefs and White v. Illinois, supra, 502 U.S. at 365, 112 S.Ct. at 747 (Thomas, J., concurring)).

And the Court made several references to hearsay that apparently would not qualify as testimonial. These references included (1) "[a]n off-hand, overheard remark" and "a casual remark to an acquaintance," ___ U.S. at ___, 124 S.Ct. at 1364; (2) "business records or statements in furtherance of a conspiracy," ___ U.S. at ___, 124 S.Ct. at 1367; and (3) "statements made unwittingly to an FBI informant," ___ U.S. at ___, 124 S.Ct. at 1368 (citing Bourjaily v. United States, 483 U.S. 171, 181-84, 107 S.Ct. 2775, 2781-83, 97 L.Ed.2d 144 (1987)).

Thus, it appears that...