People v. King

• Decision Date: 17 October 2005
• Docket Number: No. 02CA0201.,02CA0201.
• Citation: 121 P.3d 234
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason A. KING, Defendant-Appellant.
• Court: Colorado Supreme Court

121 P.3d 234

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason A. KING, Defendant-Appellant.

No. 02CA0201.

Colorado Court of Appeals, Div. II.

January 27, 2005.

Certiorari Denied October 17, 2005.

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Interim Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Casey J. Mulligan, Boulder, Colorado, for Defendant-Appellant.

TAUBMAN, J.

Defendant, Jason A. King, appeals the judgment entered on a jury verdict finding him guilty of first degree sexual assault, attempted first degree murder, and three habitual criminal counts. He also appeals his sentence. We affirm.

Following a party in December 1992, the victim, P.T., left with a man she did not know who had offered to give her a ride home. However, P.T. went with the man to an apartment in the adjacent building, where he sexually assaulted her at knifepoint. The man then took P.T. outside to the alley, stabbed her in the neck, and left her for dead. After P.T. made her way to a nearby house, police were called. Officer Christian arrived at the scene and saw P.T. bleeding from the wound on her neck. Officer Christian stayed with P.T. for approximately two hours and accompanied her in an ambulance to the hospital. P.T. told Officer Christian that the man with whom she had left the party had sexually assaulted her and stabbed her in the throat.

Later that morning, P.T. identified defendant in a six-person photographic lineup.

After recovering from her injuries, P.T. returned to her native Belgium in 1993, but died there in 1999 of unrelated causes. Defendant was tried and convicted as charged in 2001. This appeal followed.

I. Right to Self-Representation

Defendant contends that the trial court erred when it violated his right to self-representation by denying his request to proceed pro se at trial. We disagree.

A defendant in a criminal case has a right to self-representation under both the United States and Colorado Constitutions. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); People v. Arguello, 772 P.2d 87 (Colo.1989).

Before a trial court may allow a defendant to waive his or her constitutional right to counsel and proceed pro se, the defendant must unequivocally and timely assert his or her constitutional right to self-representation. People v. Harris, 914 P.2d 434 (Colo.App.1995).

Here, defense counsel filed a motion to continue the trial date about three weeks before the scheduled trial. Defense counsel asserted that witnesses were difficult to find because of the age of the case and the defense needed more time to investigate the facts of the case as well as the victim's background. At a hearing on the motion the day before trial, defense counsel advised the court that he was not ready for trial and that he would be ineffective if forced to represent defendant the following day. Immediately after this statement, defendant addressed the court as follows:

I'm begging the court to appoint conflict-free representation and to continue this matter until such time as necessary for new counsel to review this case and try to amend the blunders made by the Public Defender's Office. If this court refuses this humble plea for a fair trial, then against my will I'll have to proceed pro se and ask you.

(Emphasis added.)

Even if we assume that defendant's request for self-representation was timely, it was not unequivocal. The thrust of defendant's statement to the court was that he was requesting the appointment of new counsel and a continuance. Defendant then asserted that if the court denied these requests, he would have to proceed pro se against his will and ask the court for permission to do so. This statement did not constitute an unequivocal request for self-representation. Further, after the trial court denied defendant's request for appointment of new counsel and a continuance, defendant did not pursue his interest in proceeding pro se.

Under these circumstances, we conclude that the trial court did not err in denying defendant's request for self-representation.

II. Admissibility of P.T.'s Statements

Defendant contends that the trial court erred when it admitted the hearsay statements of P.T. into evidence as excited utterances in violation of defendant's constitutional right of confrontation. We disagree.

A. Excited Utterance

An excited utterance is an exception to the general rule that hearsay evidence is inadmissible. An excited utterance is defined 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." CRE 803(2). A hearsay statement is admissible as an excited utterance if its proponent shows (1) the occurrence or event was sufficiently startling to render inoperative the normal reflective thought processes of an observer; (2) the declarant's statement was a spontaneous reaction to the event; and (3) direct or circumstantial evidence supports an inference that the declarant had the opportunity to observe the startling event. People v. Martinez, 18 P.3d 831 (Colo.App.2000).

The trial court is afforded wide discretion in determining whether a statement is admissible under the excited utterance exception to the hearsay rule. Martinez, supra.

Here, the sexual assault and stabbing of P.T. constituted a startling event. See Martinez, supra, 18 P.3d at 835 (an assault is clearly a startling event). Regarding whether P.T.'s statements were spontaneous, the trial court made the following findings of fact:

[A]ccording to Officer Christian's testimony, [P.T.] through the ambulance ride to the hospital and even while she was at the hospital, continued to be upset concerning what had just happened to her. [P.T.] was described at some times hysterical, sometimes calm. So I'm going to find that she was, based on that evidence, that she was still under the effect of the excitement of the recent events and had not had time to reflect and fabricate a story. Rather, she was reporting what happened still under the stress and upset of the assault on her.

Although the trial court acknowledged there was no way to know how much time had elapsed between the assault and the 911 phone call, there was substantial evidence in the record that P.T. was hysterical at different times throughout the two-hour period that she made statements to Officer Christian. There was also testimony that during the two hours, P.T. continually lapsed into French while she was speaking and that she repeatedly asked whether she was going to die. Furthermore, Officer Christian testified that P.T. was bleeding badly and that P.T. was continually being examined and treated for her injuries during the time she was with her. See People v. Compan, 100 P.3d 533, 536 (Colo.App.2004) (cert. granted 2004 WL 2376474 (Oct. 25, 2004)) ("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.").

Although the court recognized the inability to determine the amount of time that had elapsed between the 911 call and the assault, the court determined that statements made by P.T. to another officer more than three hours after the police arrived at the scene were not excited utterances, because by that time, P.T. had had "enough time to reflect and gather herself."

Defendant contends that because some of P.T.'s statements were in response to questions asked by Officer Christian, the statements were inadmissible under the excited utterance exception. However, the excited utterance exception extends to statements made in response to questioning. People v. Hulsing, 825 P.2d 1027 (Colo.App.1991). The circumstances surrounding the making of the statements determines whether they are spontaneous. People v. Franklin, 683 P.2d 775 (Colo.1984).

We conclude that the trial court did not abuse its discretion in determining that the circumstances surrounding P.T.'s statements showed that they were made spontaneously in reaction to the assault and resulting injuries. Therefore, the trial court did not abuse its discretion in finding that P.T.'s statements were excited utterances.

B. Right of Confrontation

The accused in a criminal case has a constitutional right to confront and cross-examine witnesses against him or her. U.S. Const. amends. VI, XIV; Colo. Const. art. II, §§ 16, 25.

Prior to the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), a hearsay statement made by an unavailable witness was admissible against a criminal defendant if the statement fell within a firmly rooted hearsay exception. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). However, in overruling Ohio v. Roberts, the Court determined in Crawford that the Sixth Amendment requires that testimonial statements of an unavailable declarant in a criminal prosecution are admissible only if the defendant has had a prior opportunity to cross-examine the declarant. Crawford, supra; see also People v. Fry, 92 P.3d 970 (Colo.2004). Therefore, the issue here is whether P.T.'s statements to Officer Christian were testimonial interrogation so as to render them inadmissible under Crawford. We conclude that the statements were nontestimonial.

Although the Court declined to specify what constitutes a "testimonial" statement, it determined that testimonial statements need not be given under oath. Crawford, supra, 541 U.S. at ___-___, 124 S.Ct. at 1364-65. The Court listed as examples of testimonial statements, "ex parte in-court testimony or its functional equivalent . . . material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or...