People v. Dement, 81SC219

Docket NºNo. 81SC219
Citation661 P.2d 675
Case DateApril 04, 1983
CourtSupreme Court of Colorado

Dale Tooley, Dist. Atty., Susan J. Trout, Donna Skinner Reed, Deputy Dist. Attys., Denver, for petitioner.

Michael F. Morrissey, Denver, for respondent.

LOHR, Justice.

The defendant, John C. Dement, was convicted of third degree assault 1 after trial to a jury in the Denver County Court. The Denver Superior Court reversed the conviction and ordered dismissal of the case with prejudice, holding that the defendant's right under Article II, Section 16 of the Colorado Constitution to confront a witness against him had been denied when the trial court admitted certain hearsay evidence under the excited utterance exception to the hearsay rule, C.R.E. 803(2). We affirm the reversal of the defendant's conviction but direct that the superior court modify its judgment to order a new trial rather than dismissal of the assault charge.


The defendant was charged with assaulting a patron of the Club 404 in Denver with a pool cue stick on the night of December 16, 1979. At trial, the prosecution presented the testimony of three witnesses: the victim, Joseph Thompson; the bartender of the club, Marty Mapelli; and an investigating police officer. Thompson and Mapelli described the events of the day of the assault as follows. Thompson spent most of that afternoon and evening at the bar drinking beer, watching football, and playing pool. He admitted that he was quite intoxicated by the time he was assaulted that evening. Mapelli described Thompson as a known instigator of trouble at the bar because he frequently made fun of other pool players while they were engaged in a game.

According to Thompson, he was playing pool when the defendant walked into the bar. Thompson had seen Dement on other occasions but was not acquainted with him. Shortly after Dement entered, Thompson finished his game of pool, and the defendant started a game with others at the same table. The time was approximately 10:30 p.m., and Thompson decided to call it a night. He testified that it was "possible" that, as he prepared to leave, he gave the pool players some "last remarks" in his usual style of poking fun. Thompson then sat down at the bar to say good night to some other customers; a woman named Ginger was seated on his right and a man named Robert on his left. As Thompson stood up to leave, he was struck on the head. Although the blow was to the right-front of his head, the victim did not see his attacker and did not observe the object used to inflict the blow. His glasses were knocked off from the impact, and after they were retrieved by another customer, Thompson was able to see the defendant being restrained by two other men.

The bartender's account of the incident differed somewhat from that of the victim. Shortly before the assault, as Mapelli was cleaning some tables, she noticed that Dement and three other men were playing pool, and Thompson "was standing there making his funny little remarks and laugh." Mapelli noticed that two customers, Doug and Ginger (the same Ginger described in Thompson's account), were about to leave by the front door, and she walked over to say good night to them. Mapelli was standing with her back to the assault scene, facing Ginger and Doug, and did not see who attacked Thompson. Upon hearing shouts, she turned around and saw that Thompson was bleeding and Dement was being restrained by one of the other pool players. While testifying, Mapelli added that "[i]t's really hard for me to say what--actually what I even remember, because I was running behind the bar to get a clean bar towel and ice [for the victim]."

Thompson also testified that, about a month after the incident, he and one other man who was at the bar at the time of the assault met with Dement. According to Thompson, at that meeting Dement said, "I'd like to say I'm sorry, but I don't even know why I did it."

The subject of the defendant's appeal to the Denver Superior Court was admission of Thompson's testimony on direct examination about certain statements purportedly made by Ginger shortly after the assault. Prior to eliciting this testimony, an in camera conference was held at which defense counsel objected to the proposed testimony on the grounds that it was hearsay and that it would violate the defendant's right to confront the witness against him. The trial court overruled this objection, and direct examination of Thompson resumed. He then described what occurred after he was hit:

Well, I asked what happened, since of course, at that point, I had no idea, and Ginger said, "He hit you," and pointed at Jack [Dement], being restrained by those guys at the time. She said: "I thought he was coming after me, but he went at you."

After a conference with counsel off the record, the trial judge instructed the jury to disregard all of Ginger's supposed statements except "that someone said that ... the victim was struck by the defendant."

A jury of three found the defendant guilty of third degree assault, and he appealed the judgment entered on the jury verdict to the Denver Superior Court. The superior court reversed the conviction and instructed the county court to dismiss the case with prejudice on the ground that admission of the hearsay evidence violated the defendant's constitutional right to confront a witness against him. We granted the People's petition for certiorari to review the superior court judgment. We address first the question of whether the trial judge properly admitted the evidence under the "excited utterance" exception to the hearsay rule, and second, whether the defendant's constitutional rights were denied.


Thompson's testimony relating Ginger's statement at the time of the assault was offered by the prosecution to prove the truth of that statement--namely, that Dement had hit Thompson--and therefore the testimony falls within the definition of hearsay. C.R.E. 801(c). The trial court admitted the evidence under the hearsay exception for an "excited utterance," defined by C.R.E. 803(2) as 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." Such an out-of-court statement is admissible regardless of whether the declarant is available to testify at trial. C.R.E. 803. Further, the declarant may be a bystander or witness to the event rather than an actual participant. 6 J.H. Wigmore, Evidence § 1751 at 223 (Chadbourn rev. 1976); C. McCormick, Evidence § 297 at 705 (2d ed. 1972).

At least two requirements must be met to qualify a statement as an excited utterance, admissible under the hearsay exception:

First, there must be some occurrence or event sufficiently startling to render normal reflective thought processes of an observer inoperative. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought.

C. McCormick, supra, at 704. 2 Another implicit requirement, one applicable to all testimonial evidence, is that enough direct or circumstantial evidence exists to allow the jury to infer that the declarant had the opportunity to observe the startling occurrence. 6 Wigmore, supra, at 222; McCormick, supra, at 707. We have previously established essentially the same requirements in cases applying the similar common law res gestae hearsay exception prior to adoption of the Colorado Rules of Evidence. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980); Dolan v. People, 168 Colo. 19, 449 P.2d 828 (1969). The rationale for the exception is that the declarant's powers of reflection and ability to fabricate or misrepresent the events observed are momentarily suspended while the declarant is under the stress of excitement from a startling event. McCormick, supra, at 704. Unlike some other hearsay exceptions, excited utterance evidence is not limited to unavailable declarants. The reason is that the extrajudicial assertion is likely to be better than a statement from the witness at trial after time has permitted reflection or memory has faded. See 6 Wigmore, supra, § 1748 at 199.

We believe that sufficient evidence was adduced to bring the contested statement within the scope of the excited utterance exception. More than enough evidence of a "startling event," the occurrence of an assault, was presented, and Ginger's remarks were made only moments later in reaction to the event. The substance of the statement, "he hit you," and Thompson's testimony that the declarant was sitting close to him at the time of the assault were sufficient evidence to allow an inference that Ginger was in a position to observe the incident. We hold that the trial court was correct in ruling that the challenged evidence fell within the excited utterance exception to the hearsay rule.


The defendant argues that admission of the challenged testimony violated his right "to meet the witnesses against him face to face" under Colo. Const. Art. II, § 16, even if the evidence was properly admissible under the Colorado Rules of Evidence. We do not believe that C.R.E. 803(2) is unconstitutional as applied in every criminal case, but under the facts and circumstances of the present case, admission of the hearsay evidence under that rule without the opportunity to cross-examine the declarant in court denied the defendant his confrontation right.

We have previously held that:

[t]he essence of the right to confront one's accusers is to meet adverse witnesses face-to-face, Colo. Const. Art. II, Sec. 16, and to have opportunity to cross-examine them. Simms v. People, 174 Colo. 85, 482 P.2d 974. The purpose of the rule of confrontation and cross-examination is to prevent conviction by ex parte affidavits, to sift the conscience of the witness, and to test his recollection to see if his story is worthy of...

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